Kanwaljit Singh Ahluwalia, J.

1. The present appeal is directed against the impugned judgment dated 29.6.1990, rendered by the court of Additional Sessions Judge No.2, Kota, whereby the accused appellants were convicted for the offences under Sections 302/34 and 323 IPC. Having convicted the accused appellants for the aforesaid offences, the trial Judge vide a separate order of even date sentenced the appellants as under:-

2. U/s. 302/34 IPC- to undergo life imprisonment and to pay a fine of Rs.100/- each, in default of payment of fine, to undergo additional one month SI.

3. U/s. 323 IPC- to pay a fine of Rs.100/- each, in default of payment of fine to further undergo additional one month SI.

4. The trial Judge further ordered that both the sentences awarded upon the appellants shall run concurrently and they shall be entitled to benefit of Section 428 Cr.P.C. However, Janki Lal was acquitted of Section 323 IPC.

5. Janki Lal and his three sons Jagdish, Dev Karan and Gauri Shanker were nominated as accused in case arising out of FIR No. 119/88, registered at Police Station Kota Rural, initially for the offences under Sections 307/34 IPC, but subsequently upon death of Ramchandra, offence under Section 302 IPC was added.

6. The case of the prosecution in nutshell is that on 18.11.1988 at 2:00 – 3:00 PM, in the fields of Ummedpura, accused who were four in number, caused injuries to deceased Ramchandra son of Bherulal, aged 65 years and thus, committed offence punishable under Section 302/34 IPC. It is further case of the prosecution that the accused armed with weapons caused simple injuries to Mahendra Kumar (P.W.1) son of deceased Ramchandra and thereby committed offence punishable under Section 323 IPC.

7. Before we take note of brief facts of the case, we may highlight the fact that the complainant and the accused party are having adjoining fields. It has also come in the evidence that since morning accused party was irrigating their field and out of six bighas of land, five bighas of land stood irrigated and only one bigha of land was left to be irrigated. It has also come in prosecution evidence that the field of the accused are after the fields of complainant and thus, if the flow of water is prevented in the field of complainant party, accused will be deprived of water. In the context of above facts, it is now time to us to take note of the prosecution case.

8. Mahendra Kumar (P.W.1) made oral statement (Exhibit- P/1) before Girraj Singh (P.W.13), SHO, Police Station Budadeet, Kota Rural leading to registration of FIR. Girraj Singh (P.W.13) in the court deposed that on 18.11.1988 at 4:30 PM, Mahendra Kumar (P.W.1) along with younger brother OM Prakash Yadav (P.W.4) and injured father Ramchandra, who was unconscious arrived at the police station and statement (Exhibit-P/1) was recorded on the basis of which formal FIR bearing No.119/1988 was registered under Section 307/34 IPC. The statement (Exhibit- P/1) leading to registration of FIR when translated into English reads as under:-

“At this time, Mahendra Kumar son of Ramchandra by caste Ahir, aged 20 years, resident of Banethiya along with his younger brother Om Prakash aged 15 years and father Ramchandra son of Bherulal by caste Ahir aged 65 years have arrived at the police station. Mahendra Kumar made an oral statement. Today at 2-3 PM, I and my father had gone to our field in Ummedpura for irrigating field. We were opening the outlet. My father was standing alongwith me. Meanwhile, Gauri Shanker son of Janki Lal Ahir, his brothers Jagdish and Dev Karan and their father Janki Lal, who were giving water in their nearby field, came. At that time, Jagdish was armed with Gandasi, Gauri Shanker was armed with Dhariya, Dev Karan was armed with Kutiya and their father was armed with stick. Immediately on arrival, Gauri Shanker with an intention to commit murder caused Gandasi blow on the head of my father. On receipt of injury, he fell down and blood started oozing. When I st